Are gays and singles allowed to be parent of surrogate Indian child? The question poses a big obstacle to many such wannabes as state governments are trying to implement an order of the union home ministry that allows only a foreign man and woman duly married for at least two years to commission surrogacy.
Assisted reproductive technology (ART) clinics as well as interested foreigners — gays and singles — have questioned the order saying that surrogacy should be made available to all including singles, married couples and unmarried couples — as it was prior to this order.
A Mumbai-based ART clinic, Rotunda, citing provisions of the draft ART Regulation Bill, 2010 has sought clarification on the issue. Addressed to FRRO Mumbai, it says that chapter VII of the bill clearly mentions that under many clauses, unmarried couples, single men or women can commission surrogacy.
Following the home ministry’s directions, the FRRO had in December, 2012 asked it to also note that current Indian laws do not recognise gay marriages. According to sources in the union home ministry that issued the prohibitive order in July last year, the directions were issued after much deliberations and stand valid unless certain important issues are sorted out by the involved parties, including the Indian Council of Medical Research.
The foremost issues are: the position of ART clinics which are yet to be recognised by the ICMR and the ART Regulation which is still not an Act, and clarity on the issue of surrogacy law in other countries.
Sources said they have asked the ICMR to sort out these issues and make the position clear but are still waiting to get a proper response. “Our prime responsibilities as home ministry are to ensure that foreigners do not hoodwink authorities by coming on tourist visa to commission surrogacy, that surrogate mothers are not cheated, rights of surrogate child are protected and that he or she is given due citizenship and thus proper parental care. There have been cases where in the surrogate child was left in the lurch as the country of surrogate parents did not recognise surrogacy,” a source said.
Sources said that in some cases surrogacy resulted in trauma for the child and the surrogate mother. In the case of gays, the issue of parent, as has happened in some cases, can become contentious and therefore, a problem for the surrogate child like who is the real father – the one who donated sperm or the other — and what would happen to its citizenship?
PM Bhargava who was involved in the drafting the bill says couples here means only a “man and woman in a relationship”. But he adds that since the bill has been made after 12-13 years of consultation if any external ministry passes a clause that overrules the bill, th they can be challenged or negotiated.
“However, in this case there is no contradiction and the decision is in keeping with the ICMR guidelines. In any case, the single person clause in the pending bill means that gay couples can apply as single people and therefore this is not an issue,” he said.
ART clinics are upset because the notification takes away lucrative business that costs anywhere between USD 15,000 and 30,000 per surrogate child. “The notification is retrogressive. It is everybody’s right to become a parent,” says Dr Rita Bakshi of IVF Surrogacy Centre, Delhi.
Dr Indira Hinduja, credited for India’s first test tube baby, differs slightly and says the trouble is that many countries have very strict surrogacy laws.
“It is very distressing to find that the baby is not acceptable in their parent country. This is why our hospital demands that foreigners first show us a document saying their country would accept the baby,” she said. This, however, is not a regular practice.
ART clinics say the Supreme Court direction in the case of Baby Manji in 2008 had settled this issue when it clearly observed that “intended parent may be single male or a male homosexual.”
Though the historic 2009 Delhi High Court judgment decriminalized homosexuality, it is still not legal in India. “When the law of the land changes, things will change,” Hinduja said.
However, the home ministry says that so far they have not come across any such directions and would take a view once such situation arises. “As this field is still evolving and we are also not experts, we are open to suggestions and may make appropriate changes in future. But then others also must do their job and clear confusion,” sources in the home ministry said.